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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

KIM ALLEN, 

 Plaintiff, Case No. 2:12-cv-347 

 Judge Gregory L. Frost 

v. Magistrate Judge Abel 

ANDERSEN WINDOWS, INC., et al., 

 Defendants.

OPINION AND ORDER 

 This matter is before the Court on Defendants’ motion to dismiss Plaintiff’s complaint 

and to strike Plaintiff’s class action claims. (ECF No. 24.) Also before the Court are Plaintiff’s 

opposition to Defendants’ motion (ECF No. 31) and Defendants’ reply in support of their motion 

(ECF No. 33). The Court GRANTS IN PART AND DENIES IN PART Defendants’ motion. 

As more fully described below, the Court (1) finds that part of Plaintiff’s claim for breach 

of express warranty as well as her claim for declaratory judgment survive dismissal under Fed. 

R. Civ. P. 12(b)(6), (2) declines to strike Plaintiff’s class allegations in the Complaint, and (3) 

dismisses Plaintiff’s other claims for failure to state valid claims upon which relief could be 

granted. 

I. Background 

Plaintiff Kim Allen is a homeowner in Mount Vernon, Ohio. Defendants Andersen 

Windows, Inc. and Andersen Corporation (collectively, “Andersen”) manufacture and sell 

windows and doors throughout the United States. 

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 Allen, whose home was constructed in 1998,1

 had Andersen 400 Series Tilt Wash vinylclad windows installed in her home. The windows came with an express limited warranty,2

which provided twenty-year coverage for glass and ten-year coverage for products and 

components other than glass. (Limited Warranty, ECF No. 24-2, Ex. A.) 

At some point following the date on which the windows were installed in her home, 

Allen noticed dark spots and mold around one of the windows. Allen contacted Andersen and 

Andersen sent a representative to Allen’s home. The Andersen representative replaced a window 

sash that was moldy or otherwise damaged. Allen alleges that around this time, Andersen 

informed her that “her house was probably settling and allowing moisture in.” (Compl. & 13, 

ECF No. 1.) 

At some point after Andersen replaced the window sash, Allen noticed dark spots and 

mold around other windows in her home. Allen contacted Andersen in late 2008 to request 

replacement windows and additional replacement sashes. Initially, Andersen refused to replace 

the windows or window sashes in Allen’s home and continued to suggest that conditions in 

Allen’s home were responsible for the mold. In mid-2009, however, after Allen contacted 

Andersen frequently, wrote letters to Andersen’s president, and performed a humidity test on her 

home, Andersen replaced eight moldy window sashes in Allen’s home. The original windows 

are still installed in Allen’s home. 

The overriding allegation in Allen’s lawsuit is that Andersen defectively designed and/or 

manufactured the windows in question. Allen alleges that the windows do not seal properly and 

																																																								

1

 The Complaint does not provide the date on which her home was constructed but Andersen asserts, 

citing public records, that Allen’s home was constructed in 1998. (Defs.’ Mot. 4 n.7, ECF No. 24.) 

Plaintiff does not refute this assertion. 

2

 Andersen attached the warranty to its motion to dismiss. (ECF No. 24-2, Ex. A.) Because the complaint 

references the express warranty and the warranty is central to Plaintiff’s allegations, the Court may 

consider the warranty without converting Andersen’s motion to a motion for summary judgment. See, 

e.g., Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). 

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thus expose the interior structure of the windows to moisture. Allen theorizes that this is 

potentially caused by Andersen’s failure to apply a wood preservative to the windows. Not only 

does this alleged defect damage the windows, Allen further alleges that the defective nature of 

the windows also leads to damage to area surrounding the windows. 

Allen alleges that Andersen knew or should have known that its windows were defective 

but did not publicize this defect to consumers, despite the fact that Andersen could have easily 

identified the customers who purchased the windows in question. Allen also alleges that, 

because Andersen suggested that the conditions in her home (and not the defective windows) 

caused the mold and/or dark spots to form, she was delayed in discovering the defective nature 

of the windows. Allen alleges that she had no reasonable way to discover the defect until shortly 

before she filed her complaint. Finally, Allen alleges that she would not have purchased the 

windows if she knew that they were defectively designed and/or manufactured. 

Allen filed her complaint in this Court on April 18, 2012. (Compl., ECF No. 1.) Allen 

invokes the diversity jurisdiction of this Court (28 U.S.C. ' 1332) and asserts state-law claims 

for breach of contract (First Claim), breach of express warranty (Second Claim), breach of 

implied warranties (Third Claim), violations of the Ohio Consumer Sales Practices Act (Fourth 

Claim), violations of the Ohio Deceptive Trade Practices Act (Fifth Claim), violations of the 

Ohio Product Liability Act (Sixth Claim), fraudulent concealment and tolling (Seventh Claim), 

negligent misrepresentation (Eighth Claim), and negligence (Ninth Claim). Allen also includes a 

Tenth Claim that seeks declaratory and injunctive relief. 

Included in the Complaint are class action allegations, as Allen purports to bring this 

lawsuit on behalf of herself and similarly situated consumers throughout the United States. 

Allen seeks certification of a class action, defining her proposed nationwide class as: 

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All those persons or entities who currently own or have owned a 400 Series Tilt 

Wash vinyl clad window manufactured or sold by Defendant Andersen 

Corporation that was or is part of a structure physically located in the United 

States with the distinct design and/or manufacturing defect that allows moisture 

intrusion which promotes and elevated moisture content and mold growth, 

accelerated and premature rotting, decay, and deterioration, and overall failure in 

the window system under normal conditions. 

Allen also brings her claims on behalf of state sub-classes of consumers, “as applicable to each 

of the various states where the laws are similar to each of the states in which Allen resides.” 

(Compl. ¶ 39.) 

Andersen now moves to dismiss the complaint in its entirety under Fed. R. Civ. P. 

12(b)(6) for failure to state a claim upon which the Court may grant relief. (ECF No. 24.) 

Andersen also moves to strike the class action allegations contained in the Complaint. (Id.) 

Allen opposes Andersen’s motion (ECF No. 31) and the motion is now ripe for adjudication. 

I. Fed. R. Civ. P. 12(b)(6) Standard 

 Dismissal under Fed. R. Civ. P. 12(b)(6) is proper if a complaint fails to state a claim 

upon which a court can grant relief. To survive a motion to dismiss, a complaint must provide 

fair notice of what the claim is and the grounds upon which it rests, and it must set forth 

sufficient factual allegations suggesting that the plaintiff is entitled to relief under those claims. 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41, 

47 (1957)). A court, in ruling on a Rule 12(b)(6) motion, must construe the complaint in the 

light most favorable to the plaintiff and treat all well-pleaded allegations contained therein as 

true. Id. at 555–56. The defendant bears the burden of demonstrating that the plaintiff has failed 

to state a claim for relief. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The 

purpose of a motion to dismiss under Rule 12(b)(6) “is to allow a defendant to test whether, as a 

matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is 

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true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). If there is an absence of law to 

support the type of claim made, or if the facts alleged are insufficient to state a valid claim, or if 

on the face of the complaint there is an insurmountable bar to relief, dismissal of the action is 

proper. Little v. UNUM Provident Corp., 196 F. Supp. 2d 659, 662 (S.D.Ohio 2002) (citing 

Ranch v. Day & Night Mfg. Corp., 576 F.2d 697 (6th Cir.1978)). 

Fed. R. Civ. P. 8(a)(2) governs pleading standards and requires that a complaint contain a 

“short and plain statement of the claim showing that the pleader is entitled to relief.” Although 

Rule 8 does not require “detailed factual allegations,” “it does not unlock the doors of discovery 

for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678–

79 (2009). Thus, a court need not “accept as true a legal conclusion couched as a factual 

allegation.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 

pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause 

of action” will not suffice to defeat a Rule 12(b)(6) motion to dismiss. Id. In fact, “a court 

considering a motion to dismiss can choose to begin by identifying pleadings that, because they 

are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 

679. Once the court has identified the well-pleaded allegations, it should view each allegation in 

the context of the entire complaint to determine whether a plaintiff has alleged sufficient facts to 

support his or her claim. See In re Polyurethane Foam Antitrust Litig., 799 F. Supp. 2d 777, 782 

(N.D. Ohio 2011). 

 Considering only those well-pleaded facts, a complaint must “state a claim to relief that is 

plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 

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U.S. at 556). A plaintiff’s factual allegations must be enough to raise the claimed right to relief 

above the speculative level and to create a reasonable expectation that discovery will reveal 

evidence to support the claim. Twombly, 550 U.S. at 556. If the “well-pleaded facts do not 

permit the court to infer more than the mere possibility of misconduct,” the court should dismiss 

the complaint. Iqbal, 556 U.S. at 679. 

 This case also includes allegations of fraud, which are subject to heightened pleading 

requirements. Fed. R. Civ. P. 9(b). To satisfy Rule 9(b), a plaintiff must “allege the time, place, 

and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; 

the fraudulent intent of the defendants; and the injury resulting from the fraud.” Bennett v. MIS 

Corp., 607 F.3d 1076, 1100 (6th Cir. 2010) (quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 

559, 563 (6th Cir. 2003)). The rule requires that the circumstances of the fraud, and not the 

evidence of the case, be pleaded with particularity. Michaels Bldg. Co. v. Ameritrust Co., N.A., 

848 F.2d 674, 680 n.9 (6th Cir. 1988). Rule 9(b) may be relaxed when there has been a lack of 

discovery and the information needed for a plaintiff to achieve particularity is held exclusively 

by the opposing party—in other words, Rule 9(b) does not require a plaintiff to be omniscient. 

Id. The main purpose behind Rule 9(b) is to provide the defendant with notice of the plaintiff’s 

claim so that the defendant may prepare an informed responsive pleading. Id. at 679; Coffey v. 

Foamex, L.P., 2 F.3d 157, 162 (6th Cir. 1993). 

The Court must decide substantive questions of state law “in accordance with the 

controlling decisions of the highest court of the state.” Meridian Mut. Ins. Co. v. Kellman, 197 

F.3d 1178, 1181 (6th Cir. 1999) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). If the 

state’s highest court has not decided the issue, the Court must predict how that court would 

resolve it by considering decisions of the state’s lower courts, other federal courts construing 

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state law, secondary sources, and applicable dicta of the state’s highest court. Id.; see also Welsh 

v. Wachovia Corp., 191 F. App’x 345, 355–56 (6th Cir. 2006). A court should not disregard the 

decisions of intermediate appellate state courts unless it is convinced by other persuasive data 

that the highest court of the state would decide otherwise. Meridian Mut. Ins. Co., 197 F.3d at 

1181. 

 Finally, it is appropriate to address what materials this Court did not consider in ruling 

upon Andersen’s motion to dismiss. Andersen attached to its motion two declarations, with 

exhibits, and another declaration to its reply in support of the motion to dismiss. (ECF Nos. 24, 

33.) As a general rule, it is elementary that the Court does not (and cannot) consider matters 

outside the four corners of the complaint when considering a motion to dismiss under Fed. R. 

Civ. P. 12(b)(6). Clark v. Walt Disney Co., 642 F. Supp. 2d 775, 781 (S.D. Ohio 2009). An 

exception to this rule is that the court may also consider documents that a defendant attaches to a 

motion to dismiss if the documents are referred to in the complaint and are central to the 

plaintiff’s claims. Id. (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)). In 

addition, the court may consider public records and matters of which a court may take judicial 

notice. Id. (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on 

other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) and 

New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 

(6th Cir. 2003)). 

 Andersen attached a copy of the limited warranty applicable to the windows at issue in 

Allen’s Complaint. Since Allen relies on the warranty as a central part of her claims and does 

not dispute that the warranty attached to Andersen’s motion is the applicable warranty, the Court 

will consider it in addressing Andersen’s motion. The Court will also consider, as a public 

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record, the fact that Allen’s home was constructed in 1998, another fact that Andersen has 

posited in its motion to dismiss and that Allen does not dispute. The remaining factual matters 

asserted in the declarations and exhibits attached to Andersen’s motion and reply, however, are 

outside the pleadings and will be disregarded.3

 

II. Discussion 

A. Statute of Limitations 

Andersen argues for the dismissal of numerous claims asserted in the Complaint based on 

statute-of-limitations grounds. Dismissal under Fed. R. Civ. P. 12(b)(6) based on a statute-oflimitations bar is appropriate when the complaint shows conclusively on its face that the action is 

indeed time-barred. Reed Elsevier, Inc. v. TheLaw.net Corp., 269 F. Supp. 2d 942, 947 n.3 (S.D. 

Ohio 2003); see also Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 946 (6th Cir. 2002). 

1. Breach of Express Warranty 

The Court begins with an analysis of Allen’s Second Claim of the Complaint, alleging 

Andersen’s breach of express warranty. The four-year statute of limitations set forth in Ohio 

Rev. Code ' 1302.98(A) applies to claims for property damage arising out of a transaction for a 

sale of goods. Westfield Ins. Co. v. HULS Am., Inc., 128 Ohio App. 3d 270, 289, 714 N.E. 2d 

934 (Ohio Ct. App. 1998). On that much, the parties agree. Their disagreement concerns when 

the statute of limitation accrues. 

Ohio Rev. Code ' 1302.98(B) provides: 

A cause of action accrues when the breach occurs, regardless of the aggrieved 

party’s lack of knowledge of the breach. A breach of warranty occurs when tender 

of delivery is made, except that where a warranty explicitly extends to future 

																																																								

3 Andersen also attached to its motion the complaints in other similar cases filed against Andersen in 

other jurisdictions. Though these are properly treated as public records, and therefore arguably could be 

considered in ruling upon Andersen’s motion, the Court finds them immaterial to the issues presented in 

Andersen’s motion. 

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performance of the goods and discovery of the breach must await the time of such 

performance, the cause of action accrues when the breach is or should have been 

discovered. 

Ohio Rev. Code § 1302.98. Andersen argues that the statute of limitations on Allen’s express 

warranty claim began to run when the windows were delivered to her, a time that was no later 

than 1998. Thus, Andersen argues that Allen should have brought her express warranty claim no 

later than 2002 and that such claim is therefore time-barred. For her part, Allen contends that her 

cause of action accrued when she discovered the breach of warranty. In other words, Allen 

argues that the statute of limitations was tolled (until 2009, she says) by operation of the 

exception in Ohio Rev. Code ' 1302.98(B). 

 Whether the discovery rule applies depends upon whether the warranty at issue in this 

case “explicitly extends to future performance of the goods and discovery of the breach must 

await the time of performance” within the meaning of Section 1302.98(B). The express limited 

warranty applicable in this case states: 

All non-glass portions of windows and patio doors are warranted to be free from 

defects in manufacturing, materials and workmanship for a period of ten (10) 

years from the date of first purchase. During this time, Andersen may elect to 

either repair or replace any defective Andersen product for you. If repair or 

replacement is impractical, Andersen may elect to refund your original product 

purchase price or the original product retailer’s list price (whichever is less).4

 

(Limited Warranty, Defs.’ Mot. Summ. J. Ex. 2-A, ECF No. 24-2.) 

 Allen argues that where, as here, a warranty “guarantees goods for a specific period,” the 

discovery rule of Section 1302.98(B) applies. (Pls.’ Opp. 13, ECF No. 31.) She relies 

principally on three cases that have applied the discovery rule in the UCC context. See Wells v. 

Visual Security Concepts, Inc., 5th Dist. No. 04-CA-118, 2005-Ohio-4272, at & 26; Westfield 

																																																								

4 For the glass components, the warranty period is 20 years.		(Limited Warranty, Defs.’ Mot. Summ. J. 

Ex. 2-A, ECF No. 24-2.) 

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Ins. Co. v. HULS Am., Inc., 128 Ohio App. 3d 270, 289, 714 N.E. 2d 934 (Ohio Ct. App. 1998); 

Std. Alliance Indus., Inc. v. Black Clawson Co., 587 F.2d 813, 821 and n.17 (6th Cir. 1978).5

 

 The issue, however, is not as simple as Allen presents it. Ohio courts have “grappled 

with the meaning” of the “future performance” language in Ohio Rev. Code ' 1302.98(B). See 

Zaremba v. Marvin Lumber and Cedar Co., 458 F. Supp. 2d 545, 550 (N.D. Ohio 2006) (Boyko, 

J.); Conrad v. Winnebago Indus., Inc., No. 2:06-cv-953, 2008 WL 1696950, at *3 (S.D. Ohio 

Apr. 9, 2008) (Graham, J.). While it is true that cases like Wells and Std. Alliance hold that a 

seller’s promise to repair or replace defects for a specified time period constitutes a warranty of a 

good’s “future performance,” other courts disagree. Importantly for our purposes here, cases in 

Ohio federal and state courts hold that a promise to repair or replace defects for a specified time 

period is simply a remedy for the buyer and not a promise of future performance. See Zaremba, 

458 F. Supp. 2d at 551; Allis-Chalmers Credit Corp. v. Herbolt, 17 Ohio App. 3d 230, 236-37, 

479 N.E. 2d 293 (Ohio Ct. App. 1984). 

 As noted above, the Sixth Circuit held in Std. Alliance that an express warranty is a 

promise of “future performance” within the meaning of Ohio Rev. Code ' 1302.98(B). Std. 

Alliance, 587 F.2d at 820-21. But at the time the court decided Std. Alliance, there was no Ohio 

precedent on point, leaving the court to predict what Ohio courts would do if confronted with the 

issue. See Zaremba, 458 F. Supp. 2d at 551 (observing that Std. Alliance found no guidance in 

Ohio case law with respect to the Ohio Rev. Code ' 1302.98(B) issue); see also Std. Alliance, 

																																																								

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 Allen also cites cases standing for the Ohio law proposition that a cause of action does not accrue until 

(1) the damage occurs and (2) the plaintiff can draw some relationship between the damages and the 

defendant’s conduct. (Pl.’s Opp. 13-14, ECF No. 31.) See, e.g., St. Paul Fire & Marine v. R.V. World, 

Inc., 62 Ohio App. 3d 535, 542, 577 N.E. 2d 72 (Ohio Ct. App. 1989); O’Stricker v. Jim Walter Corp., 4 

Ohio St. 3d 84, 87, 447 N.E. 2d 727 (Ohio 1983). These cases are inapposite to Allen’s express warranty 

claim, however, as they deal with the accrual of the statute of limitations in tort cases. Allen’s express 

warranty claim sounds in contract, not tort. And, in any event, the discovery rule’s application in express 

warranty cases is governed by the statutory strictures of Ohio Rev. Code ' 1302.98(B). 

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587 F.2d at 821 (noting explicitly, in the context of another state-law issue, that it “must 

determine what Ohio courts would do if confronted with” the issue). Six years after Std. 

Alliance, guidance came in the form of Allis-Chalmers, an Ohio Court of Appeals decision that 

interpreted the meaning of “future performance.” And after undertaking a rigorous analysis of 

the U.C.C., the Allis-Chalmers court came to an opposite conclusion to that of the Sixth Circuit. 

Like the Sixth Circuit in Std. Alliance, the court in Allis-Chalmers was faced with an 

express warranty in which the seller warranted its product to be free of defect for a period of 

time, but limited its liability under the warranty to an obligation of “repairing or replacing” the 

defective item. See Allis-Chalmers, 17 Ohio App. 3d at 236; see also Std. Alliance, 587 F.2d at 

816. Rejecting the buyer’s claim that the express warranty extended to “future performance,” the 

Allis-Chalmers court noted the difference in the U.C.C. between “remedies” and “warranties” or 

obligations. Allis-Chalmers at 236. And it was that difference that forced the Allis-Chalmers 

court to part ways with the Sixth Circuit’s interpretation of Ohio law in Std. Alliance: 

As noted in Standard Alliance Indus., supra, the repair or replace language would 

appear to meet the definition of an express warranty as it is a “ * * * promise 

made by the seller to the buyer which relates to the goods and becomes part of the 

basis of the bargain * * *.” [Ohio Rev. Code ' 1302.26(A)(1).] However, all 

promises are not warranties. An express warranty is a promise which requires that 

the “ * * * goods shall conform to the affirmation or promise.” Id. Here, the 

promise required that the seller’s conduct conform to the promise, not that the 

product’s performance conform to the promise. 

Id. at 237. 

 Accordingly, Allis-Chalmers rejected the reasoning of Std. Alliance and held as a 

matter of Ohio law that “[a] promise by the seller of goods to ‘repair and replace’ defective parts 

for one year is not a warranty extending to future performance under R.C. 1302.98, but is a 

remedy.” Id. 

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Just six years ago, a decision from the Northern District of Ohio similarly rejected Std. 

Alliance in favor of the Allis-Chalmers interpretation of Ohio Rev. Code ' 1302.98(B). 

Zaremba, 458 F. Supp. 2d at 550-51. In Zaremba, Judge Boyko was confronted with a statuteof-limitations issue related to a breach-of-warranty claim that arose from allegedly defective 

windows and doors installed in a custom-built home. Id. at 547. While there was a dispute as to 

whether a one-year or ten-year warranty applied the products at issue, the court found the 

relevant language of the warranties “virtually identical”: the limited warranties at issue in that 

case warranted the products free from defect and obligated the defendant to “repair” or “replace” 

the defective product during the warranty period. Id. at 548. Recognizing that Ohio courts had 

“grappled” with the issue of how the “repair or replace” language in a limited warranty impacted 

the accrual of the statute of limitations, Judge Boyko chose to follow the interpretive trail blazed 

by the Allis-Chalmers court instead of the Sixth Circuit’s ruling in Std. Alliance. Id. at 551. 

Accordingly, Judge Boyko found that the “repair or replace” language in the warranty at issue in 

Zaremba was not a warranty of future performance within the meaning of Ohio Rev. Code '

1302.98(B) but, rather, was simply the specification of a remedy for the product’s failure to be 

free from defect. Id. Thus, Judge Boyko found that the statute of limitations for the plaintiff’s 

breach-of-warranty action began to run when the subject windows and doors were delivered and 

expired four years later. Id. “The discovery of the defective windows and doors [seven years 

after they were delivered] does not re-trigger the running of the four-year limitations period. . . .” 

Id. 

In this case, the Court agrees with Andersen and finds Allis-Chalmers and Zaremba to 

embody the proper interpretation of Ohio law. Simply put, the seller’s obligation to repair or 

replace a defective product for a specified period of time does not constitute a warranty of 

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“future performance” within the meaning of Ohio Rev. Code ' 1302.98(B). Applying this 

interpretation of Ohio law, the language in Andersen’s limited warranty, when read as a whole, 

does not warrant future performance within the meaning of Ohio Rev. Code ' 1302.98(B). The 

obligation expressed by the warranty language is for Andersen to “either repair or replace any 

defective Andersen product” within the warranty period. In substance, the obligation is no 

different than the warranty obligations analyzed by the Ohio court of appeals in Allis-Chalmers 

and Judge Boyko in Zaremba. Like the warranties examined in those cases, the Anderson 

limited warranty does not guarantee future performance free of defect—it simply warrants that 

Andersen will repair or replace defective products. As such, the limited warranty does not 

trigger the “future performance” exception to the general rule that the four-year statute of 

limitations accrues at the time of delivery of the product in question. And because the Andersen 

windows complained of here were delivered no later than 1998, Allen’s express warranty claim 

is time-barred. 

Allen’s memorandum in opposition to Andersen’s motion to dismiss does not attempt to 

distinguish Zaremba or Allis-Chalmers, much less explain how the Andersen warranty at issue in 

this case somehow extended to the “future performance” of the products alleged to be defective 

in this case. Allen simply contends in conclusory fashion that the warranty “guarantees goods 

for a specific period.” (Pl.’s Opp. 13, ECF No. 31.) In taking this position, Allen may be relying 

on the first sentence of the limited warranty, which states that the non-glass portions of Andersen 

windows and doors “are warranted to be free from defects in manufacturing, materials and 

workmanship for a period of ten (10) years from the date of first purchase.” But even if the 

Court were to take this first sentence of the limited warranty in isolation, it does convert the 

Andersen’s warranty into one that “extends to future performance” under Ohio Rev. Code '

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1302.98(B). For the discovery rule to apply, the warranty at issue must explicitly extend to 

future performance and discovery of the breach must necessarily await such future performance. 

See Voth v. Chrysler Motor Corp., 218 Kan. 644, 545 P.2d 371, 376 (Kan. 1976) (analyzing 

identical language in Kansas codification of the U.C.C.). As the Voth court explained succinctly, 

the “future performance” exception is an extremely limited one: 

‘. . . Where, for example, seeds are sold and impliedly warranted to produce a 

specific fruit, the statute of limitations should not begin to run until it can be 

ascertained that the wrong seeds were sold. If a manufacturer understands that a 

certain product will be used for a particular purpose and knows that it will be 

impossible to detect any defects in the goods until a later period, the breach of 

warranty should not cause the statute to begin to run until it has become possible 

to ascertain whether there is a defect . . ..’ (Vol. 37 Fordham Law Review, Sales 

Statute of Limitations, p. 249.) 

Id., 545 P.2d at 377. This example bears no resemblance to the situation in the case at bar. As 

Allen herself alleges in the Complaint, the defective nature of her windows is a condition that 

existed at the time the windows were delivered and installed in her home; indeed, the gravamen 

of her Complaint is that Andersen knowingly sold a defective product. (Compl. && 2-4, 26-31.) 

The Court finds nothing about the warranty, the products, or the alleged defect that would 

necessarily require “future performance” before discovery of the breach. 

The cases relied upon by Allen do not change the Court’s view. As noted previously, 

Std. Alliance held to the contrary, but was only predicting how Ohio courts would interpret the 

“future performance” language in Ohio Rev. Code ' 1302.98(B). And Allis-Chalmers 

undermined that prediction just six years later with its holding, grounded in a well-reasoned 

interpretation of the U.C.C. See Zaremba, 458 F. Supp. 2d at 551 (“This Court must believe, if 

the Sixth Circuit had the benefit of an Ohio reported appellate decision, directly on point, it 

would have ruled differently.”). Nor are Wells or Westfield Ins. persuasive authority. 

Notwithstanding the fact that Wells is a more recent case than Allis-Chambers, the court of 

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appeals’ decision there lacks any meaningful analysis of the issue at hand. And Westfield Ins. is 

not even on point: that case merely held that the plaintiffs’ claim was time barred 

notwithstanding the discovery rule because they did not discover the defect within the warranty 

period. Westfield Ins., 128 Ohio App. 3d at 289. At best, the court assumed without deciding 

that the discovery rule applied; the court did not opine on how the warranty at issue extended to 

“future performance” within the meaning of Ohio Rev. Code ' 1302.98(B). 

For these reasons, the Court finds that the statute of limitations on Allen’s express 

warranty claim based upon Andersen’s alleged failure to deliver products free of defects began to 

run in 1998 (at the latest) when Andersen tendered delivery of the products at issue. Thus, to the 

extent that Allen claims that Andersen breached its express warranty by providing defective 

windows, such a claim is time-barred. A claim for breach of express warranty based on the 

theory that Andersen breached its obligation to provide a product “free from defects in 

manufacturing, materials and workmanship” had to be brought no later than 2002, four years 

after the windows were delivered and installed in Allen’s home. 

Finding this part of Allen’s express warranty claim time-barred, however, does not end 

the discussion. Allen did not limit her express warranty claim to simply the theory that Andersen 

failed to deliver windows free of defects. Specifically, Allen alleges: 

Defendants breached the express warranty in the Class Windows, which were 

susceptible to water penetration and subsequent damage, contained a latent defect 

at the time of sale, and otherwise failed to perform as expressly represented by 

Andersen. Furthermore, Andersen has failed and refused to honor the terms of 

the express warranty causing the warranty to fail of its essential purpose, even 

though Andersen knows that its products were defective. 

(Compl. & 62.) Similarly, Allen alleges elsewhere in the Complaint that Andersen has “refused 

to replace any of the defective windows” despite their continued failure. (Compl. & 16.) 

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 Based on the allegations in the Complaint, the Court finds that the part of Allen’s express 

warranty claim based on a theory that Andersen failed to comply with the “repair or replace” 

obligation is not time-barred. Though acknowledging that Andersen replaced eight window 

sashes in mid-2009 after Allen complained about the windows, Allen argues that “the whole 

Window is defective, not just the sash” and that simply replacing the sash does not comply with 

the terms of the express warranty. (Pl.’s Opp. 20, ECF No. 31.) 

Even though Allen’s express warranty claim is time-barred to the extent based on 

Andersen’s alleged failure to provide non-defective windows, Allen’s claim that Andersen failed 

to comply with its obligation to “repair or replace” her windows is not time-barred. As noted 

above, Andersen’s express warranty is not a type that explicitly extends to future performance 

within the meaning of U.C.C. But unlike claims for breach of warranty based upon the condition 

of the product, a claim for breach based upon the failure to “repair or replace” does not accrue 

upon delivery: “the promise to repair is an independent obligation that is not breached until the 

seller fails to repair.” Cosman v. Ford Motor Co., 285 Ill. App. 3d 250, 674 N.E.2d 61, 68 (Ill. 

Ct. App. 1996) (analyzing identical U.C.C. provision under Illinois law); see also Versico, Inc. v. 

Engineered Fabrics Corp., 238 Ga. App. 837, 520 S.E.2d 505, 509-10 (Ga. Ct. App. 1999); 

Nationwide Ins. Co. v. General Motors Corp., 533 Pa. 423, 625 A.2d 1172, 1179-81 (Pa. 1993) 

(Zappala, J., dissenting). Thus, the four-year statute of limitations on Allen’s claim based on 

Andersen’s “repair or replace” obligation did not begin to run until Andersen failed to abide by 

its obligation to repair or replace. Construing Allen’s factual allegations in the light most 

favorable to her, Andersen failed to repair or replace (as she contends is necessary) on multiple 

occasions and as recently as 2008, when she wrote to the company and obtained no response. 

(Compl. & 15.) Allen further alleges that in mid-2009, Andersen provided eight replacement 

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sashes, which Allen alleges not to have been a sufficient manner of rectifying the problem with 

her windows. (Compl. && 15-16, 62.) Thus, Allen has arguably alleged that Andersen delayed 

compliance with its obligation under the written warranty until mid-2009, at which time it 

provided replacement sashes that did adequately satisfy its “repair or replace” obligation. 

Having filed her Complaint within four years of that, Allen has alleged enough facts at this 

juncture for the Court to consider her express warranty claim timely filed, to the extent based on 

Andersen’s alleged breach of the “repair or replace” obligation in the limited warranty. 

2. Breach of Implied Warranties 

Allen’s Complaint also alleges claims for breach of implied warranties under the Ohio 

U.C.C. (Compl., && 64-68 (Third Claim), ECF No. 1.) Under Ohio law, a seller of goods 

impliedly warrants that its products are of good and merchantable quality, fit and safe for the 

ordinary purposes for which the goods are intended. Ohio Rev. Code ' 1302.27 (adopting 

U.C.C. ' 2-314 as Ohio law). Ohio law also recognizes an implied warranty of fitness for a 

particular purpose, under which a seller warrants that goods shall be fit for “any particular 

purpose for which the goods are required,” provided that the seller knows or has reason to know 

of the buyer’s “particular purpose.” Ohio Rev. Code ' 1302.28 (adopting U.C.C. ' 2-315). For 

each implied warranty claim, the applicable statute of limitations is four years. Ohio Rev. Code 

' 1302.98(A). 

 Implied warranties, by definition, do not explicitly extend to future performance, thus 

removing any possibility that the discovery rule of Ohio Rev. Code ' 1302.98(B) could toll the 

limitations period in this case. See Std. Alliance, 587 F.2d at 820; Gentek Bldg. Prods, Inc. v. 

Sherwin-Williams Co., No. 1:02-cv-13, 2005 WL 6778678, at *10 (N.D. Ohio Feb. 22, 2005). 

Allen therefore had to bring her claim for breach of the implied warranties within four years of 

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the time the subject windows were delivered. Because Andersen delivered the windows no later 

than 1998, the statute of limitations ran on Allen’s implied warranty claims sometime in 2002.6

 

3. Breach of Contract 

Separate from her breach-of-warranty claims, Allen’s Complaint also alleges a claim for 

breach of contract. The gravamen of this claim is that Andersen breached its sales contract with 

Allen by providing unsatisfactory windows that “failed to acceptably perform.” (Pl.’s Opp. 19, 

ECF No. 31.) 

Even though Allen may have pleaded a breach-of-contract claim separate from her 

warranty claims, the claim cannot evade the statute of limitations. Under Ohio Rev. Code '

1302.98(A), a breach of contract claim related to a sales contract must be brought within four 

years after the claim accrued. And Ohio Rev. Code ' 1302.98(B) provides that the claim accrues 

when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. So 

Allen’s claim accrued at the time Andersen delivered the windows to her; there is no discovery 

rule applicable to her breach-of-contract claim. Accordingly, just as most of Allen’s breach of 

warranty claims are time-barred for having failed to be brought within four years of the time of 

delivery, so too is Allen’s claim for breach of contract. 

 

																																																								

6

 The discovery rule may operate to toll the statute of limitations applicable to a claim for breach of an 

implied warranty in tort, a legal theory that Ohio law recognizes. See In re Porsche Cars N. Am., 2012 

WL 2953651, at *55; see also Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 49-

50, 537 N.E. 2d 624 (1989). But Allen cannot invoke this theory for two reasons. First, she explicitly 

alleged a claim for breach of the implied warranty of merchantability, which is a claim based grounded in 

contract principles and subject to the provisions of the U.C.C. In re Porsche Cars N. Am., at *55. 

Second, a claim for implied warranty in tort is available only to remote purchasers who are not in privity 

with the seller. Id. (citing Chemtrol Adhesives). Allen’s Complaint does not allege that she is a remote 

purchaser; indeed, the tenor of the Complaint is that she purchased the windows in question from 

Andersen and is therefore in privity of contract with Andersen. (Compl., '' 12, 34.) 

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4. Ohio Consumer Sales Practices Act 

Allen’s Fourth Claim alleges a violation of the Ohio Consumer Sales Practices Act 

(“CSPA”), based on the theory that Andersen “induced” her (and the members of her proposed 

class) to purchase defective Andersen products. (Compl. && 70-71, ECF No. 1.) Andersen 

argues that Allen’s CSPA claim is barred by the CSPA’s two-year statute of limitations. See 

Ohio Rev. Code ' 1345.10(C). Indeed, there is no discovery rule applicable to CSPA claims, 

meaning that any claim for damages under the CSPA is time barred in this case. See Jackson v. 

Sunnyside Toyota, Inc., 175 Ohio App. 3d 370, 2008-Ohio-687, 887 N.E. 2d 370, at && 8-9; see 

also Bucy v. Aurora Loan Servs., LLC, No. 2:10-cv-1050, 2011 WL 1044045, at *2 (S.D. Ohio 

Mar. 18, 2011) (noting that the CSPA has no discovery rule; “the two-year statute of limitations 

is absolute”). 

In response to Andersen’s argument, Allen notes that the “absolute” two-year statute of 

limitations applies to actions for money damages and not to “equitable claims.” (Pl.’s Opp. 14, 

ECF No. 31.) And a close reading of Allen’s Complaint confirms that she seeks “equitable 

relief” including “injunctive relief,” “equitable restitution, accounting, and other relief.” (Compl. 

& 72.) While conceding that her damage claims under the CSPA are time-barred, Allen 

contends, citing Ohio Rev. Code ' 1345.09(C)(1), that her claims for equitable relief should 

survive because the CSPA applies a discovery rule for equitable claims. (Pl.’s Opp. 14.) 

Allen’s argument reads too much from the statute upon which she relies. Ohio Rev. Code '

1345.09(C)(1) states that “in any action for rescission, revocation of the consumer transaction 

must occur within a reasonable time after the consumer discovers or should have discovered the 

ground for it and before any substantial change in condition of the subject of the consumer 

transaction.” (Emphasis added.) Thus, the discovery rule applies only to CSPA claims seeking 

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rescission as a remedy. See Temple v. Fleetwood Enters., Inc., 133 F. App’x 254, 266 (6 th Cir. 

2005) (citing Cypher v. Bill Swad Leasing Co., 36 Ohio App. 3d 200, 202, 521 N.E. 2d 1142 

(Ohio Ct. App. 1987)). Because Allen’s Complaint does not seek rescission as a remedy, she 

cannot invoke the discovery rule to toll the CSPA statute of limitations. 

 The Court is cognizant of the fact that the Allen’s CSPA claim is arguably open ended in 

that it seeks equitable relief “in such form as the Court may deem appropriate” and purports to 

specify certain types of equitable relief without limitation on other forms that the Court may 

award. (Compl. & 72.) But this Court does not read the Complaint to be seeking rescission. The 

rescission remedy under the CSPA requires a plaintiff to revoke the transaction at issue “within a 

reasonable time after the consumer discovers or should have discovered the ground for it and 

before any substantial change in condition of the subject of the consumer transaction.” Allen’s 

Complaint pleads nothing of the sort. If Allen was truly seeking rescission of the transaction, 

particularly in light of the specificity she has pleaded her other claimed remedies, it stands to 

reason that she would have sought rescission explicitly or, at the very least, pleaded facts to 

establish that she is, in fact, seeking a rescission remedy. The Complaint does not do so; to the 

contrary, it is evident that Allen is seeking damages and other forms of equitable relief applicable 

to the class she seeks to certify. 

5. Ohio Product Liability Act and Negligence 

Allen’s Sixth Claim and Ninth Claim allege, respectively, violation of the Ohio Product 

Liability Act (“OPLA”) and negligence. Specifically, Allen alleges that Andersen’s windows 

were defective in manufacture, design, and due to inadequate warning of risk or damage. 

(Compl. && 78-80.) Ohio Rev. Code '' 2307.74, 2307.75, 2307.76. Andersen argues that these 

claims are barred by the two-year statute of limitation codified at Ohio Rev. Code 2305.10(A). 

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Alternatively, Andersen argues that Allen’s claims are barred in any event by the ten-year statute 

of repose found at Ohio Rev. Code ' 2305.10(C). 

As to the two-year statute of limitations, Allen opposes dismissal based on two theories. 

First, she claims that the discovery rule applicable to tort claims delayed the accrual of her 

OPLA and negligence claims. Second, Allen claims that the “continuing injury” doctrine applies 

here. Neither theory can save Allen’s claim for a statute-of-limitations bar. 

Under Ohio law governing tort claims based upon a latent defect or property damage, the 

statute of limitations does not begin to run until (1) actual damage occurred and (2) the plaintiff 

can draw some relationship between the damage and Andersen’s conduct. See St. Paul Fire & 

Marine, 62 Ohio App. 3d at 76-77. Allen argues that “because of Defendants’ repeated attempts 

to conceal the defect in the Windows, Plaintiff was unable to draw a relationship between the 

damage and the conduct of Defendants.” (Pl.’s Opp. 15, ECF No. 31.) 

Allen’s argument fails, however, because the Complaint definitively shows that she did 

draw a relationship between the alleged defect in her windows and Andersen’s conduct. Allen 

alleges that she contacted Andersen in late 2008 to obtain replacement windows for those 

damaged by mold and also “wrote a letter to the president of the company complaining about the 

issue.” (Compl. & 15.) After receiving no response, Allen alleges she wrote another letter. (Id.) 

Allen’s complaints finally led to Andersen agreeing to provide replacement window sashes in 

2009. (Id.) By way of these allegations, Allen has effectively pleaded herself out of the 

discovery rule she seeks to invoke. Allen’s complaints to Andersen in 2008 about the issues 

with her windows and her demands for replacement windows show that (1) Allen’s windows 

were damaged and (2) Allen suspected that the mold was due to Anderson’s conduct (i.e., 

manufacturing or designing a defective product). So even if the Court indulges Allen’s claim 

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that the discovery rule should apply to he claims, the statute of limitations began to run no later 

than late 2008 when Allen complained to Andersen that its windows were defective. Thus, the 

statute of limitations expired in late 2010 (at the latest), more than one year before Allen 

commenced this action. 

Allen’s argument based upon the “continuing tort” doctrine fares no better. Under this 

doctrine, “the defendant’s tortious activity is ongoing, perpetually creating fresh violations of the 

plaintiff’s property rights. The damage caused by each fresh violation is an additional cause of 

action.” Creech v. Brock & Assocs. Constr., 183 Ohio App. 3d 711, 2009-Ohio-3930, 918 N.E. 

2d 541, at & 16 (emphasis added). Allen invokes this rule based on the notion that the allegedly 

defective windows “remain in her home and are continuing to damage the property.” (Pl.’s Opp. 

15, ECF No. 31.) But this argument conflates the distinct issues of defendant’s tortious activity 

and the injury caused by it. For the continuing tort doctrine to apply, it is the tortious act itself 

that must be continuing, not the injury or harm caused by past conduct. Sexton v. City of Mason, 

117 Ohio St. 3d 275, 2008-Ohio-858, 883 N.E. 2d 1013, at & 41. In other words, “the 

determinative question centers upon the nature of the defendant’s tortious conduct, not upon the 

nature of the damage caused by that conduct.” Id. (citation and internal quotations omitted). 

In this case, Allen alleges only that the injury is continuing, not the tortious conduct 

itself. Allen’s product liability claim is based on the theory that a defect existed in her windows 

from the time they were delivered to her and installed in her home. She has alleged ongoing 

injury, not an ongoing tort. Thus, Allen cannot rely on the continuing tort doctrine to toll the 

running of the statute of limitations. 

Even if Allen’s claim did not accrue more than two years before she filed suit, Andersen 

argues in the alternative that the statute of repose in Ohio Rev. Code ' 2305.10(C)(1) bars her 

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claim.7

 But because this Court finds that Allen’s Complaint alleges facts to show that her claims 

accrued in late 2010, the statute of repose does not come into play. By its terms, the statute of 

repose applies only if the claim in question has not accrued. See Jones v. Walker Mfg. Co., 8th 

Dist. No. 97301, 2012-Ohio-1546, at & 5. It is the statute of limitations that bars Allen’s OPLA 

claim, not the statute of repose. 

6. Negligent Misrepresentation 

Allen’s Eighth Claim attempts to state a claim for negligent misrepresentation. Allen 

alleges that Andersen represented that the windows in question “were treated so as to prevent 

water penetration, premature rot, and decay” when Andersen either (1) knew that the window 

components were not so treated or (2) did not know whether they were so treated, yet recklessly 

represented that they were. (Compl. & 91.) Allen alleges that Andersen made these 

misrepresentations “with intent to induce” her to purchase Andersen windows. (Id. & 92.) 

Allen’s Complaint does not provide specifics in terms of who made the alleged false 

statements and when they made them. But as Andersen notes in its motion to dismiss, Allen 

alleges (albeit in conclusory fashion) that the misrepresentations induced her to purchase the 

Andersen windows. (Defs.’ Mot. 19, ECF No. 24 (citing Compl. && 92-93).) Thus, based on a 

fair reading of Allen’s Complaint, the alleged misrepresentations upon which Allen relied must 

have occurred (in Allen’s case) in 1998, if not sooner. (Defs.’ Mot. 19, ECF No. 24.) Based on 

that timing, Andersen argues that the four-year statute of limitations set forth in Ohio Rev. Code 

																																																								

7 Ohio Rev. Code ' 2305.10(C)(1) provides: “Except as otherwise provided in divisions (C)(2), (3), (4), 

(5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a 

product liability claim shall accrue against the manufacturer or supplier of a product later than ten years 

from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a 

business in which the product was used as a component in the production, construction, creation, 

assembly, or rebuilding of another product.” 

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2305.09(D) bars Allen’s negligent misrepresentation claim. See Lasmer Indus., Inc. v. AM Gen., 

LLC, 741 F. Supp. 2d 829, 836 (S.D. Ohio 2010) (noting that Ohio courts apply four-year statute 

of limitations to negligent misrepresentation claims). 

In response, Allen does not dispute that the four-year statute of limitations applies. (Pl.’s 

Opp. 16, ECF No. 31.) Nor does she dispute Andersen’s characterization of her claim or the 

notion that the misrepresentations that allegedly induced her to purchase the windows in question 

occurred in 1998 or sooner. (Id.) Allen argues, however, that the statute of limitations does not 

bar her claims because the discovery rule applies. Specifically, Allen cites the language of Ohio 

Rev. Code ' 2305.09 specifying that a fraud claim does not accrue until the complainant has 

discovered the fraud. (Id.) 

Allen cites no Ohio case standing for the proposition that the discovery rule set forth in 

Ohio Rev. Code ' 2305.09 applies to a negligent misrepresentation claim. Indeed, the language 

of the statute specifically refers to the discovery rule being applicable only to actions “for 

trespassing under ground or injury to mines,” actions “for the wrongful taking of personal 

property,” and actions “for fraud.” Ohio Rev. Code ' 2305.09. Because of the statute’s 

specificity, federal and state courts in Ohio have found that the discovery rule does not apply to 

claims for negligent misrepresentation. See, e.g., Lasmer Indus., 741 F. Supp. 2d at 836-37; Neff 

v. Std. Fed. Bank, No. 2:06-cv-856, 2007 U.S. Dist. LEXIS 71976, at *16-17 (S.D. Ohio Sept. 

27, 2007); Orshoski v. Krieger, 6th Dist. App. No. OT-01-009, 2001 Ohio App. LEXIS 5018, at 

*15 (Ohio Ct. App. Nov. 9, 2001); Chandler v. Schriml, 10th Dist. No. 99AP-1006, 2000 Ohio 

App. LEXIS 2209, at *11 (Ohio Ct. App. May 25, 2000). Allen gives this Court no reason to 

depart from the holdings of these cases. The Court therefore finds Allen’s negligent 

misrepresentation claim to be time-barred. 

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7. Estoppel to Plead Statute of Limitations 

In anticipation of the statute of limitations defense that Andersen raises in the motion to 

dismiss, Allen’s Complaint contains a preemptive strike. In a section of the Complaint titled 

“Fraudulent Concealment and Tolling,” Allen alleges that Andersen “knew or reasonably should 

have known the Class Windows were defective prior to the time of sale, and intentionally 

concealed that material information and the truth concerning their product from Plaintiff and the 

general public, while continually marketing the Class Windows as a dependable product.” 

(Compl. & 49, ECF No. 1.) Because of the “fraudulent concealment” of the fact that Andersen’s 

windows were defective, Allen alleges that she was “not reasonably able to discover” that her 

windows were defective until “shortly before” she filed the Complaint in this action. (Id., &&

49-51.) 

Andersen takes the position that Ohio law does not recognize “fraudulent concealment” 

as a basis upon which to toll a statute of limitations. (Defs.’ Mot. 19, ECF No. 24.) This may 

not be an accurate statement of Ohio law, however: “under limited circumstances Ohio 

recognizes that the concealment of a cause of action can toll the statute of limitations.” Phelps v. 

Lengyel, 237 F. Supp. 2d 829, 836 (N.D. Ohio 2002) (citing Baldridge v. Toombs, 23 Ohio Op. 

2d 404, 189 N.E.2d 177, 180 (Ohio C.P. 1962)); see also Thornton v. State Farm Mut. Auto Ins. 

Co., No. 1:06-cv-18, 2006 U.S. Dist. LEXIS 83968, at *19 (N.D. Ohio Nov. 17, 2006); Bryant v. 

Doe, 50 Ohio App. 3d 19, 22, 552 N.E. 2d 671, 675 (Ohio Ct. App. 1988). The point is 

academic in this case, however, as Allen disclaims the notion that she is invoking the doctrine of 

fraudulent concealment to “toll” the statute of limitations in this case. (Pl.’s Opp. 16, ECF No. 

31.) Rather than argue for tolling due to “fraudulent concealment,” Allen argues that the 

doctrine of equitable estoppel prevents Andersen from relying on the statute of limitations 

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defense to bar her claims in this case. (Id.) See Thornton, 2006 U.S. Dist. LEXIS 83968, at *20-

21 (acknowledging that equitable estoppel is a distinct doctrine from equitable tolling of a statute 

of limitations). 

State law governs the application of equitable estoppel to state-law claims. Walburn v. 

Lockheed Martin Util. Servs., Inc., 443 F. App’x 43, 47 (6th Cir. 2011). Under Ohio law, the 

doctrine of equitable estoppel precludes a defendant from using the statute of limitations as a 

defense when the defendant’s conduct induced the delay in filing the action. JRC Holdings, Inc. 

v. Samsel Servs. Co., 166 Ohio App.3d 328, 2006–Ohio–2148, 850 N.E.2d 773, at ¶ 28. A 

plaintiff must prove four elements to show that the doctrine applies: (1) that the defendant made 

a factual misrepresentation; (2) that the misrepresentation misled the plaintiff; (3) that the 

misrepresentation induced the plaintiff to reasonably and justifiably rely on it by delaying the 

filing of the action until after the expiration of the statutory period; and (4) that the reliance 

caused detriment to the plaintiff. Id. Ohio cases have held that when applied to a limitations 

defense, a plaintiff must show that the defendant misrepresented the length of the limitations 

period, promised a better settlement if the plaintiff did not bring suit, or made similar 

representations to induce a delay in bringing suit. Id. See also Walburn, 443 F. App’x at 48-49 

(citing Helman v. EPL Prolong, Inc., 139 Ohio App. 3d 231, 743 N.E. 2d 484, 495 (Ohio Ct. 

App. 2000)). A court may resolve the issue of equitable estoppel’s applicability on a Rule 

12(b)(6) motion to dismiss if the plaintiff has not pleaded facts that, if proved, demonstrate the 

defendant’s efforts to prevent the plaintiff from filing suit. See Doe v. Archdiocese of Cincinnati, 

116 Ohio St. 3d 538, 2008-Ohio-67, 880 N.E. 2d 892, at & 8. 

Allen cites paragraphs 1, 3, 4, 7, 27, 29, 30, and 33 of her Complaint as setting forth the 

basis for her reliance on the equitable estoppel doctrine. But none of these paragraphs, whether 

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taken individually or collectively, plead sufficient facts to (if proven) show that equitable 

estoppel applies here. As described by Allen herself in her opposition to Andersen’s motion to 

dismiss, these paragraphs allege that “Defendants had reason to know about serious defects in its 

Windows.” (Pl.’s Opp. 17, ECF. No. 31 (citing Compl. && 1, 3, 4, 7, 27, 29, 30, and 33).) And 

in the section of the Complaint specifically devoted to pleading her equitable estoppel theory of 

avoiding the statute of limitations, Allen alleges that Andersen should be equitably estopped due 

to “acts of fraudulent concealment,” including “failing to disclose that their Windows were 

defectively manufactured and would deteriorate in less than their expected lifetime, leading to 

damage to the properties on which the Windows were installed.” (Compl. & 49.) 

The problem with these allegations is that they describe a factual basis for certain claims 

for relief, but not a basis for applying equitable estoppel related to the statute of limitations. “In 

order to apply the doctrine to the statute of limitations, a party must show that the 

misrepresentation ‘was calculated to induce a plaintiff to forgo the right to sue.’” Hoeppner v. 

Jess Howard Elec. Co., 150 Ohio App. 3d 216, 2002-Ohio-6167, 780 N.E. 2d 290, at & 43 

(quoting Welfley v. Vrandenburg, 10th Dist. No. 95APE11–1409, 1996 WL 145467 (Ohio Ct. 

App. Mar. 29, 1996)); see also Walburn, 443 F. App’x at 49 (observing that Ohio courts have 

“narrowed the kind of misrepresentation that must be alleged in order to invoke equitable 

estoppel”; the misrepresentation must be of a kind that induces a plaintiff to forgo filing suit). 

Allen has alleged, at most, that Andersen engaged in acts and omissions that concealed defects in 

Andersen’s windows and that Allen (and others similarly situated to her), as a result, could not 

detect the latent defects until those defects manifested themselves. (Compl. & 50.) But the 

Complaint is devoid of any allegation that Andersen made a misrepresentation that induced her 

to forgo filing suit, which is the sine qua non of equitable estoppel as it relates to estoppel to rely 

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on the statute of limitations as a defense. Doe, 116 Ohio St. 3d 538, 2008-Ohio-67, 880 N.E. 2d 

892, at & 8; see also Kegg v. Mansfield, 5th Dist. No. 2000CA311, 2001 WL 474264, at *5 

(Ohio Ct. App. Apr. 30, 2001) (rejecting application of equitable estoppel when the alleged 

misrepresentations related to the merits of plaintiff’s claim and were “in no way related to 

misrepresentations concerning the statute of limitations or a promise of settlement”). 

 Allen has failed to plead sufficient facts to support application of the equitable estoppel 

doctrine. Accordingly, Andersen is not estopped to raise the statute of limitations as a defense to 

the claims analyzed above. 

B. Merits of Express Warranty Claim 

As detailed above, Allen’s Second Claim for breach of express warranty—to the extent 

based upon Andersen’s alleged failure to abide by its “repair or replace” obligation—survives a 

statute-of-limitations bar. Andersen additionally argues for dismissal, however, on the basis that 

Allen fails to state an express warranty claim on the merits. Andersen’s arguments are not welltaken. 

First, Andersen argues that the limited warranty has expired. Because the warranty had a 

ten-year term that began running from the 1998 purchase and installation of the windows in 

Allen’s home, Andersen argues that the warranty expired in 2008 and that the Complaint 

therefore fails to plead an actionable breach. For her part, Allen argues that she is not hamstrung 

by the ten-year term of the limited warranty because that warranty is not the only basis of her 

claim. Citing Ohio Rev. Code ' 1302.26 (codifying ' 2-313 of the U.C.C.), Allen says that 

“[a]ny factual affirmation of goods” is enough to form an express warranty. (Pl.’s Opp. 19, ECF 

No. 31.) 

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The Court rejects Allen’s argument. In neither the Complaint nor her opposition to the 

motion to dismiss does Allen specify what “factual affirmation of goods” she relies upon other 

than the Andersen’s written limited warranty. Indeed, in pleading her express warranty claim, 

Allen identifies only the limited warranty as the basis of her claim. (Compl. && 59-62.) 

Accordingly, the Court finds that Allen has pleaded an express warranty claim based only upon 

Andersen’s written limited warranty. 

Nonetheless, the Court cannot agree with Andersen that the warranty necessarily expired 

before the windows allegedly failed. According to Allen’s Complaint, she contacted Andersen 

on multiple occasions seeking replacement sashes for those that were damaged. (Compl. && 13-

15.) According to the Complaint, Andersen replaced window sashes on at least two occasions, 

the latest one occurring in mid-2009 after Andersen had initially refused in 2008 to provide 

replacements. (Id.) Based on these allegations, Allen has alleged enough facts at the time being 

to rebut a claim that the limited warranty necessarily expired prior to the time of the alleged 

breach. 

Andersen also argues that Allen’s express warranty claim is barred because there has 

been no breach. Because the Complaint alleges that Andersen replaced the sashes on the 

windows Allen complained of (Compl. & 15), Andersen alleges that it performed all it was 

required to do under the terms of the limited warranty. (Defs.’ Mot. 24, ECF No. 24.) While 

Andersen may have performed this “fix,” however, that act does not, in and of itself, establish 

that Andersen is insulated from a breach-of-warranty claim. Allen alleges that the replacement 

of the window sashes did not rectify the problem: according to Allen the windows “are failing 

and continuing to fail” notwithstanding Andersen providing new sashes. (Compl. & 16.) And as 

Allen argues in opposition to Andersen’s motion, “[b]ecause the whole Window is defective, not 

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just the sash, replacing the sash did not cure the problem.” (Pl.’s Opp. 20, ECF No. 31.) 

Andersen therefore cannot obtain dismissal at the pleading stage based on the notion that it fully 

performed its “repair or replace” obligation under the terms of the limited warranty. 

Nor is the Court persuaded by Andersen’s argument that dismissal is appropriate for 

Allen’s failure to provide “adequate notice” of a breach of warranty. Citing St. Clair v. Kroger 

Co., 581 F. Supp. 2d 896 (N.D. Ohio 2008), Andersen argues that a breach of warranty claim 

must be dismissed if the plaintiff “fails to plead pre-litigation notice.” Id. at 902; see also Ohio 

Rev. Code ' 1302.65. While this may be an accurate statement of the law, the Court disagrees 

that Allen has failed to adequately plead notice. The Complaint alleges in various places that 

Allen contacted Andersen on multiple occasions to complain about the failure of her windows. 

Though Allen is often unspecific in her description of whom she contacted, how she did so, or 

when she did, these shortcomings in detail (though fatal to a fraud claim under Fed. R. Civ. P. 

9(b)) are not fatal to the notion that she has pleaded notice. The reasonableness and adequacy of 

notice to Andersen is an issue for another day; for now, Allen has pleaded enough to escape 

dismissal on this ground. See Chemtrol Adhesives, 42 Ohio St. 3d at 51 (noting that the 

adequacy of notice and reasonable time of notice are ordinarily questions of fact); see also

Kabco Equip. Specialists v. Budgetel, Inc., 2 Ohio App. 3d 58, 61, 440 N.E. 2d 611 (Ohio Ct. 

App. 1981). 

Finally, Andersen argues that dismissal of Allen’s express warranty claim on the merits is 

appropriate because the incidental and consequential damages she seeks are not recoverable 

under the express terms of the limited warranty. The Court need not reach this issue, however, 

as it is not a valid ground for dismissal under Fed. R. Civ. P. 12(b)(6). As the Court has already 

found, Allen has stated a cognizable claim for relief based on the theory that Andersen has not 

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performed its “repair or replace” obligation under the warranty in question. The damages, if any, 

to be awarded for such a breach, if ultimately proven by Allen, is a question of remedy. It is 

premature at this juncture to dismiss Allen’s claim in its entirety based on the issue of what 

remedy she may or may not be able to recover. 

C. Ohio Deceptive Trade Practices Act 

In her Fifth Claim, Allen purports to allege a violation of the Ohio Deceptive Trade 

Practices Act (“ODTPA”), codified at Ohio Rev. Code ' 4165.01 et seq. Andersen argues that 

Allen’s ODTPA claim is not cognizable as a matter of law because she lacks standing to bring it. 

More specifically, Andersen argues that only persons damaged or injured in their “business, 

vocation, or occupation” are proper plaintiffs under the ODTPA. (Defs.’ Mot. 28, ECF No. 24.) 

See Ohio Rev. Code '' 4165.01(D) and 4165.03(A); see also Gascho v. Global Fitness 

Holdings, LLC, 863 F. Supp. 2d 677, 698 (S.D. Ohio 2012). Because Allen has not alleged 

herself to have been engaged in a “business, vocation, or occupation” with regard to her purchase 

and installation of the windows at issue in this case, Andersen contends that the Court should 

dismiss the ODTPA claim for lack of standing. 

For her part, Allen disputes Andersen’s statutory interpretation, relying on Bower v. Int’l 

Bus. Machs., Inc., 495 F. Supp. 2d 837 (S.D. Ohio 2004), for the proposition that the ODTPA 

does not exclude consumers like her from the universe of plaintiffs who have standing to bring 

an ODTPA claim under Ohio law. Just five months ago, however, this Court rejected the Bower 

holding in In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 2953651 (S.D. Ohio 

July 19, 2012). In In re Porsche, this Court followed the lead of Dawson v. Blockbuster, Inc., 

8th Dist. No. 86451, 2006-Ohio-1240, in which an Ohio court of appeals held that the ODTPA 

“protects the interests of a purely commercial class that does not include individual consumers.” 

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In re Porsche, 2012 WL 2953651, at *63 (citing Dawson); see also Dawson, at && 23-25. The 

Court sees no reason to depart from its holding in In re Porsche. The Court therefore dismisses 

Allen’s ODTPA claim. 

D. “Fraudulent Concealment” 

Allen’s Seventh Claim is titled “fraudulent concealment and tolling.”8

 Allen alleges in 

this claim that Andersen “actively concealed” the defects in the windows in question by taking 

“active and affirmative steps to prevent Plaintiff from learning about the defective nature of the 

Class Windows, including keeping their internal knowledge and communications about the 

windows secret and non-public.” (Compl. & 83.) Allen further alleges that Andersen 

“repeatedly” assured her that the windows were not the reason for the damage caused to the 

product and to the area around the windows. (Id., & 84.) 

As an initial matter, the Court finds it necessary to clarify what the nature of Allen’s 

Seventh Claim actually is. Allen styles the Seventh Claim as one for “fraudulent concealment.” 

A cognizable claim for “fraudulent concealment” under Ohio law requires a plaintiff to show (1) 

a concealment of a fact when there is a duty to disclose; (2) which is material to the transaction 

at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and 

recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent 

of misleading another into relying upon it; (5) justifiable reliance upon the representation or 

concealment; and (6) a resulting injury proximately caused by the reliance. Koyo Corp. of USA v. 

Comerica Bank, No. 1:10-cv-2557, 2011 WL 4540957, at *6 (N.D. Ohio Sept. 29, 2011) (citing

																																																								

8 Under the Seventh Claim, Allen alleges that Andersen’s “fraudulent concealment” of the defect(s) in 

Allen’s windows should toll the statute of limitations under the doctrine of “equitable tolling.” (Compl. &

87, ECF No. 1.) As noted previously, however, Allen expressly disclaimed any reliance on equitable 

tolling based on fraudulent concealment; rather, Allen argues that the doctrine of equitable estoppel 

precludes Andersen from invoking the statute of limitations. (Ante at 23; Pl.’s Opp. 16-17, ECF No. 31.)			

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Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 462 N.E.2d 407, 409 (Ohio 1984)). A party can be 

liable for any material omissions if it has a duty to speak. Id. (citing Schulman v. Wolske & Blue 

Co., L.P.A., 125 Ohio App.3d 365, 708 N.E.2d 753, 758 (Ohio Ct.App.1998)). Thus, a claim 

based on “concealment” must allege an underlying duty to disclose. See Spears v. Chrysler, 

LLC, No. 3:08-cv-331, 2011 WL 540284, at *9 (S.D. Ohio Feb. 8, 2011). “A duty to disclose 

arises only in limited circumstances, such as where there is relationship in which ‘one party 

imposes confidence in the other because of that person's position, and the other party knows of 

this confidence.’” Id. (quoting Central States Stamping Co. v. Terminal Equip. Co., Inc., 727 

F.2d 1405, 1409 (6th Cir.1984)). Absent an allegation of a duty to disclose, dismissal of a 

plaintiff’s claim for “fraudulent concealment” is appropriate for failure to state a valid claim for 

relief. See, e.g., Loyd v. Huntington Nat’l Bank, No., 1:08-cv-2301, 2009 WL 1767585, at *13 

(N.D. Ohio June 18, 2009); see also Spears at *9 (“if a complaint alleges concealment, it must 

also allege an underlying duty to speak”). 

Allen appears to be alleging a fraud claim, at least in part, based on a “concealment” 

theory. In paragraph 83 of the Complaint, Allen alleges: “The Defendants actively concealed 

the fact that the Class Windows caused (or will cause) injury to the property of the Plaintiffs [sic] 

and Class. The Defendants took active and affirmative steps to prevent Plaintiff from learning 

about the defective nature of the Class Windows, including keeping their internal knowledge and 

communications about the windows secret and non-public.” Allen does not, however, allege the 

requisite relationship between her and Andersen that would have given rise to a duty to speak. 

Accordingly, to the extent Allen relies solely on acts of concealment by Andersen as the basis of 

her Seventh Claim, the claim is dismissed for Allen’s failure to state a valid claim for relief. 

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But when the Court parses the allegations in Allen’s Seventh Claim, it becomes evident 

that (despite her labeling of the claim) Allen is not alleging simply a fraudulent concealment 

claim. Allen is also alleging a claim for simple fraud, based on the theory that Andersen made 

affirmative misrepresentations upon which she relied: 

Each time Defendants replaced a window sash, Plaintiff was repeatedly assured 

that the source of the damage was not the Class Windows. As such, Plaintiff did 

not discover the fact that the Windows were, in truth, defective and the source of 

the mold damage. 

(Compl. & 85, ECF No. 1.) 

The Court construes this allegation as one sounding in fraud and not “fraudulent 

concealment.” Accordingly, notwithstanding Allen’s failure to plead the requisite facts to 

support a duty to disclose in a fraudulent concealment context, the Court proceeds to analyze 

whether she has pleaded a fraud claim that can survive dismissal. 

In support of dismissal, Andersen argues that Allen has not pleaded fraud with the 

requisite particularity required under Fed. R. Civ. P. 9(b). In cases alleging fraud, the Court 

considers this particularity requirement against Fed. R. Civ. P. 8(a), which requires only a “short 

and plain statement of the claim.” Michaels Bldg. Co., 848 F.2d at 679. The purpose of the 

particularity requirement is to provide defendants with fair notice of the substance of plaintiff's 

claims so that they are able to prepare their Answer. Bird v. Delacruz, 411 F. Supp. 2d 891, 895 

(S.D. Ohio 2005). In order to provide this fair notice, a plaintiff must allege, at a minimum, “the 

time, place, and content of the alleged misrepresentation on which he or she relied; the 

fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the 

fraud.” Id. (quoting United States ex rel Bledsoe v. Cmty. Health Sys., 342 F.3d 634, 643 (6th 

Cir. 2003) (internal quotations omitted). Failure to plead fraud with particularity is valid basis 

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upon which a court may grant a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Evans v. 

Pearson Enters., 434 F.3d 839, 852-53 (6th Cir. 2006). 

A review of Allen’s Complaint shows definitively that she has not pleaded even the 

minimum “who, what, where, when, and how” of any alleged misrepresentation. See Sanderson 

v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (quoting United States ex rel. 

Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997)) (internal 

quotation omitted). The above quoted paragraph 85 of the Complaint is typical of Allen’s fraud 

allegations—conclusory in nature with no detail as to the specifics of who made the fraudulent 

statement, when the fraudulent statement was made, where the fraudulent statement was made, 

or how the statement was part of the sort of fraudulent scheme that Allen contends was afoot 

here. To the extent Allen’s fraud claim might be based upon alleged advertisements or 

promotional materials touting the windows in question, Allen does not identify the circumstances 

under which she saw or heard them; nor does she describe with particularity what any such 

representations were. As to her claims of active “concealment,” Allen does not identify any 

circumstances under which disclosure should have been made, who actively concealed the facts 

she claims could have been discovered, or what particular information was available to the 

unspecified persons and actively concealed. (Compl. && 49, 83.) 

Allen’s opposition to Andersen’s motion to dismiss does nothing to shed light on the 

allegations in her Complaint. Allen cites to paragraphs 13 through 19 of her Complaint as the 

operative allegations showing the “who, what, when, where, and how of her fraudulent 

concealment claim” (Pl.’s Opp. 8-9, ECF No. 31), but a review of those paragraphs belies her 

claim that she has pleaded fraud with particularity. The allegations are conclusory at best and 

reveal little to no detail surrounding the actual misrepresentations allegedly made. 

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Allen has failed to plead fraud with the particularity required by Fed. R. Civ. P. 9(b). 

Andersen’s motion to dismiss the fraud claim is therefore well taken. 

E. Declaratory and Injunctive Relief 

Allen’s Tenth Claim asserts a purported claim for “Declaratory and Injunctive Relief.” 

(Compl. 30, ECF No. 1.) Andersen moves to dismiss the Tenth Claim on the basis that (1) the 

Complaint fails to allege facts to support the relief sought and (2) Allen lacks standing to seek 

injunctive relief because she has not alleged a threat of future harm. (Defs.’ Mot. 34, ECF No. 

24.) 

As to Allen’s claim for declaratory relief, Andersen’s motion to dismiss is denied. The 

Declaratory Judgment Act provides that, “[i]n case of actual controversy within its jurisdiction ... 

any court of the United States ... may declare the rights and other legal relations of any interested 

party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 

2201(a). Because the Court found above that Allen’s claim for breach of express warranty (to 

the extent based on Andersen’s alleged breach of the “repair or replace” obligation) survives a 

Rule 12(b)(6) dismissal, Allen’s claim for declaratory relief likewise remains viable. See, e.g., 

Shurka Aero., Inc. v. Eaton Aero., L.L.C., No. 1:08-cv-1565, 2011 U.S. Dist. LEXIS 33489, at 

*21 (N.D. Ohio Mar. 29, 2011). 

As for Allen’s “claim” for “injunctive relief,” the Court notes that Allen has not 

technically stated a valid claim. Injunctive relief is a remedy for a claim, not a cause of action 

unto itself. Huntington Nat’l Bank v. Guishard, No. 2:12-cv-1035, 2012 U.S. Dist. LEXIS 

167214, at *15 n.1 (S.D. Ohio Nov. 26, 2012). Nonetheless, this Court will treat Allen’s 

averments seeking injunctive relief as part of her prayer for relief, even though contained under 

the allegations of her Tenth Claim. When treated as such, there is no reason for dismissal of the 

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injunctive relief prayer at this juncture. Whether Allen may obtain injunctive relief in the form 

she seeks is an issue for another day. 

Andersen’s motion to dismiss the Tenth Claim is accordingly denied. 

F. Motion to Strike Class Claims 

In addition to moving to dismiss, Andersen moves to strike the class action claims 

asserted in Allen’s Complaint. The Court denies Andersen’s motion in this respect. 

Fed. R. Civ. P. 12(f) allows the Court to strike from a pleading “an insufficient defense or 

any redundant, immaterial, impertinent, or scandalous matter.” Absent from Andersen’s motion 

is an explanation of how the class action allegations fit this description. Instead, Andersen relies 

on authority standing for the proposition that a court may strike class action allegations before a 

motion for class certification “where the complaint itself demonstrates that the requirements for 

maintaining a class action cannot be met.” (Defs.’ Mot. 36, ECF No. 24.) See Rikos v. Proctor 

& Gamble Co., No. 2:11-cv-226, 2012 WL 641946, at *3 (S.D. Ohio Feb. 28, 2012) (citing 

Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011)). 

While the Court may strike class allegations prior to a motion to certify, the Court 

declines to do so at this time. To be sure, the Court has serious doubts as to Plaintiff Allen’s 

ability to maintain a class action in this case, especially when considering that this Opinion and 

Order disposes of the vast majority of her claims. Nonetheless, the Court deems it prudent to 

assess the propriety of class certification in the context of a fully briefed class certification 

motion rather than in the context of a motion to strike class claims at the pleading stage. Should 

Allen choose to file a motion for class certification notwithstanding the Court’s dismissal of most 

of her claims, the Court will address the propriety of a class action at that time. See, e.g., 

Elliason v. Gentek Building Prods., Inc., No. 1:10-cv-2093, 2011 U.S. Dist. LEXIS 94032, at *7-

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8 (N.D. Ohio Aug. 23, 2011); Faktor v. Lifestyle Lift, No. 1:, 2009 U.S. Dist. LEXIS 47978, at 

*5-6 (N.D. Ohio June 3, 2009). 

III. Conclusion 

For the reasons detailed above, this Court GRANTS IN PART AND DENIES IN 

PART Andersen’s motion to dismiss and to strike class claims (ECF No. 24) as follows: 

 Defendants’ motion to dismiss Plaintiff’s First Claim (Breach of Contract) is 

GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Second Claim (Breach of Express Warranty) is 

GRANTED to the extent the Second Claim is based on an alleged failure to deliver 

products free of defect; 

 Defendants’ motion to dismiss Plaintiff’s Second Claim (Breach of Express Warranty) is 

DENIED to the extent the Second Claim is based on an alleged breach of the duty to 

repair or replace; 

 Defendants’ motion to dismiss Plaintiff’s Third Claim (Breach of Implied Warranties) is 

GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Fourth Claim (Ohio Consumer Sales Practices 

Act) is GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Fifth Claim (Ohio Product Liability Act) is 

GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Seventh Claim (Fraudulent Concealment) is 

GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Eighth Claim (Negligent Misrepresentation) is 

GRANTED; 

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 Defendants’ motion to dismiss Plaintiff’s Ninth Claim (Negligence) is GRANTED; 

 Defendants’ motion to dismiss Plaintiff’s Tenth Claim (Declaratory Judgment) is 

DENIED; and

 Defendants’ motion to strike Plaintiff’s class claims is DENIED. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE

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